Brexit Negotiations and Citizens' Rights

Tuesday 11 July 2017

The British government and European Commission look set to agree on the protected status of UK expats in Europe following Brexit.

With the commencement of Brexit talks last month, both sides set out their opening negotiating positions on citizens’ rights, an issue on which both are agreed should be resolved as a matter of priority.

The British government published their paper 'Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU', and the position of the European Commission was summarised in a paper entitled 'Essential Principles on Citizens' Rights'.

Each takes a somewhat different approach, with the UK paper focussing primarily on the rights of EU citizens in the UK, whilst the paper from the European Commission sets out general principles that should apply to all EU citizens.

The proposals from the British government are unquestionably less emphatic, clear and generous than those by the European Commission, but the lack of information may well be a negotiating position or simply an inability to set out a plan.

Strip out the sophistry from the British side and there is broad agreement about protecting certain key 'rights' of expatriates.

In particular, although the fine detail has yet to be sorted, insofar as UK expats living in Europe are concerned:

A right of permanent residence will be guaranteed to expatriates who relocate up to the date the UK leaves the EU. The right will apply after 5 years residence, in line with current EU rules. So if you currently live in France or you do so before the UK finally leaves the EU you will have a right to permanent residence.

The right of existing UK State retired expatriates to S1 health certificates will be maintained for life, and the certificates will continue to be issued until the date when the UK leaves the EU.

The UK State Retirement Pension will continue to be uprated in line with inflation for expats in Europe, as occurs for most British expatriates elsewhere around the world.

Existing rules to export certain social security benefits will be protected up to exit, including aggregation of benefits.

Mutual recognition of professional qualifications.

The British government have also proposed that visitors to Europe from the UK will also continue to benefit from existing European Health Insurance Card (EHIC) scheme 'or a similar arrangement'. There has yet to be a reaction from the Commission, but given the facilitating impact on tourism of the EHIC scheme it can be anticipated that they will welcome it.

Perhaps the greatest uncertainty for those planning to relocate to Europe from the UK is just when the ‘cut-off’ date will apply.

Although the UK government stated that it would be ‘no earlier than 29th March 2017 or later than the date when the UK leaves the EU’, the former date is simply not a serious one as it would be illegal under European law. The position is even contradicted within the paper itself, where it also states: 'until the UK’s exit, while the UK remains a member of the EU, EU citizens resident here will continue to enjoy the rights they have under EU Treaties'.

The later date will also be extended by a transition period beyond the scheduled withdrawal date of 29th March 2019, as the British government have accepted that there will be no 'cliff-edge' for EU citizens seeking permanent residence in the UK, stating: 'all qualifying EU citizens will be given adequate time to apply for their new residence status after our exit...............The grace period of blanket permission will last from exit day for a fixed period of time, which we will specify in due course but which we expect to be up to two years'.

It also remains open to the EU to offer current and prospective British expatriates in Europe better terms than may be offered by the UK government to Europeans already resident in the UK, or seeking to relocate in the future.

The UK has rejected the proposal from the Commission that the European Court of Justice (ECJ) should retain jurisdiction over settlement of disputes, but on the assumption that the UK leaves the EU that is hardly a surprising position.

The use of specific dispute resolution procedures or the International Court of Justice in The Hague seem possible other options, although it may be the UK would be prepared to agree to the role of the ECJ for a limited duration. Without recognition of the ECJ British tourists and companies would have no means of litigating on claims.

More broadly, the tide appears to be turning on the British government's approach to the negotiations, with reports in the British press that Ministers have been told by their advisors that they simply cannot 'have their cake and eat it'. A number of recent developments also suggest a softer Brexit now looks more likely:

The UK general election failed to deliver a clear Brexit mandate. Theresa May now lacks political authority as a leader, having lost her parliamentary majority and with a Cabinet and a Party that is bitterly divided over Brexit;

The first round of the negotiations appears to have gone to the European Commission, who have been able to impose their sequencing demands;

The global trading ambitions of the UK are beginning to look a huge gamble;

The risk that London will lose its status as Europe's leading financial centre has heightened;

Business leaders have escalated their concerns, warning of a serious labour shortage if tight immigration controls are imposed and of significant economic difficulties if a single market and a customs union are not maintained for at least a transitional period;

Europe looks more confident, determined and united.

Just how this will spin out remains unclear, but the imperative of a beneficial trading relationship with the EU will
require that concessions are made over sovereignty and freedom of
movement.

Although it still seems unlikely that the UK will remain a member of the European Union, the Brexit Minister David Davies has confirmed that following signing of the withdrawal agreement (scheduled for March 2019) there will be a transitional period of several years, until at least 2022.